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Annulment, Legal Separation and Divorce in California

These three different remedies for ending a marriage are often misunderstood. This post covers each one to shed light and help clarify the various options California residents have when seeking to terminate their marriage.

Tom and Dave got married in scenic Bakersfield, but a few weeks after the marriage, Tom found out that Dave had been married before and the divorce paperwork was never signed. Tom and Dave have no real property, but they do have a joint bank account and Dave’s daughter from a previous marriage lives with the couple.

Ricky and Lucy have been married longer than either of them care to admit, but they are now having relationship issues. However, a divorce is not in the cards, because Lucy has health issues and needs to stay on Ricky’s health plan and Ricky is among the millions of Americans who believe that divorce is morally unacceptable.

Brad and Angelina have been married a short time but have acquired significant property. After Brad supposedly got in a fight with one of his sons, Angelina decided she’d had enough and she wants out of the marriage.

These three different couples with three different marital issues probably need three different legal remedies.

Annulment

Some people erroneously believe that if they change their minds within a few hours or days after exchanging vows, that they can annul their marriages and move on as if nothing happened. Although marriage is a civil contract, it is quite unlike purchasing land in Florida or buying a used car, so there is no “buyer’s remorse” period. In fact, annulment has nothing to do with the duration of the marriage and everything to do with the legality of that relationship.

Before the United States Supreme Court legalized gay marriage in 2015, some same-sex couples tied the knot in a state that recognized such unions and then subsequently relocated to California. If one or both spouses tried to get a divorce in the Golden State, most judges considered gay divorce to be illegal, since gay marriage was illegal in California. So, rather than go to a state that had legalized gay marriage, establish residency, and file for divorce, some same-sex California couples elected to annul their marriages when they split up.

Gay annulment was not a sure thing, because spousal gender is not listed among the grounds for annulment in Family Code 2210. Under this provision, marriages are illegal if they involve:

Incest: California prohibits unions between “close blood relatives,” which includes parents and children, full and half siblings, uncles and nieces, and a few other relationships.

Bigamy: There is a nascent movement afoot to change the bigamy laws, but such changes are a long way off, if they ever happen at all.

Age: Persons under 18 can marry only in very limited circumstances, if at all.

Prior Marriage: This is a rare occurrence. If Husband or Wife was already married but his or her spouse had been away for at least five years, the marriage is not automatically invalid but only presumptively invalid.

Unsound Mind: This phrase isn’t really defined, but usually means that the spouse has no understanding whatsoever of what it means to be married. If a spouse cohabitates with an unsound-mind spouse, there can be no annulment.

Fraud: The fraud must pertain to a fundamental element in the relationship (e.g., “I only married you to get a green card.”).

Force: Voluntary cohabitation also renders “shotgun marriages” valid.

Incapacity: One spouse must be completely incapable of sexual intercourse and the condition must be incurable.

Some pre-2015 gay couples chose not to get annulments because these proceedings only dissolve the marriage and do not address any related issues, such as child custody or property division.

Legal Separation

This process is basically the anti-annulment in terms of its legal effect, because it resolves ancillary issues without dissolving the marriage. The above example is fairly typical, because if only the filing spouse has an issue with marriage dissolution, the other spouse almost inevitably counterclaims for divorce.

Procedurally, legal separation is very much like a divorce, because they are both in the same part of the Family Code (Section 2330 et seq.). At least one spouse must meet the residency requirement, papers must be served, and there could be a final trial. Moreover, a legal separation judgment looks almost exactly like a divorce judgment, except there is no clause dissolving the marriage. The biggest difference is that there is no waiting period.

Divorce

By simple arithmetic, we arrive at annulment + legal separation = divorce. Like the other family law cases, divorce is a multi-step process:

Petition: At least one spouse must have been a resident of the state for 180 days and a resident of the county for 90 days. Other than the rare incurable insanity divorce, irreconcilable differences is the only recognized ground for divorce in California.

Service: After the petition is filed, the respondent must normally be personally served with the papers, although judges do allow substituted service by mail, posting, or publication in some cases. In 2015, a New York judge authorized service via Facebook, so electronic service may be the next big thing.

Temporary Hearing: About two weeks after the respondent is served, the judge normally holds a hearing to determine temporary custody, temporary support, and other interim matters.

Mediation: Most judges refer contested cases to mediation, and trained family law mediators can often successfully resolve even difficult and divisive cases.

Finalization: The final orders are not set in stone, because they can be modified later based on changed circumstances.

The property division must result in a just and right division of the estate, and child custody provisions must be in the best interests of the children.